1.
These appeals are directed against the judgment and order dated 16th April, 2004 of the High Court of Judicature at Patna passed in Criminal Appeal Nos. 646
of 1987 and 32 of 1988, whereby the appeals of the appellants were dismissed by
the High Court and their conviction and sentence was maintained.

2.
Criminal Appeal No. 432 of 2005 by special leave was filed by accused No. 1 Kapildeo
Mandal (A- 1) and accused No. 5 Milan Mandal (A-5), whereas Criminal Appeal No.
433 of 2005 by special leave was filed by accused No. 2 Dip Narain Mandal
(A-2), accused No. 3 Subhit Mandal (A-3) and accused No. 4 Pratap Mandal (A-4).
After the case was reserved for judgment by this Court, it was informed by the
Registry of this Court that A-3 Subhit Mandal S/o Chedi Mandal, fell seriously
ill and was sent for treatment to JawaharlalNehruMedicalCollege and Hospital, Bhagalpur, and during the course of treatment
he died on 6th
February, 2007. The
appeal filed by A-3 is, therefore, rendered infructuous.

3. All
the accused persons were convicted by the 3rd Additional Sessions Judge, Bhagalpur in Sessions Trial No. 34 of 1983
under Sections 302 read with Section 149, IPC and sentenced for imprisonment
for life for having committed the offence of murder of deceased Sitaram Mandal.
The accused were also convicted under Sections 452 and 148, IPC. A-1 and A- 4
were further convicted under Section 323, IPC. Two appeals preferred by the
accused against their conviction and sentence were dismissed by the High Court
and thus they are before us by special leave.

4. The
incident took place in the night between 14th & 15th July, 1979. As per the prosecution case as reported in the FIR by PW-9
Ramanand Mandal, at about 11.00 p.m. he woke up after hearing the sound of
barking dogs. A lantern was burning in the verandah of his house. He saw
persons, namely, A-1 and his younger brother A-5 entering from the inner
courtyard from the roof of his house. One of them went to the southern side and
opened the window from that side.

A-2
and A-4 entered the house along with some other persons. One person opened the
main door on the eastern side. A-3 and 5-6 other persons entered from that
door. A-3 was carrying gun, whereas A-1, A-2 and A-5 were carrying country-made
pistols. Other persons were carrying swords and lathis. They assaulted the
inmate of the house. A-2 fired at Sitaram Mandal as a result of which he was
badly injured. A-3 Subhit Mandal ordered to kill PW-9 Ramanand Mandal, upon
which A-1 fired upon PW-9. A-1 assaulted PW-9 with the butt of a country-made
pistol on the head. One of the miscreants sprinkled kerosene oil of two bottles
upon the body of PW-6 Brahmadeo Mandal and made search of a match-box to set
fire upon his body. PW-5 Mahesh Mandal was assaulted with a lathi. While
leaving, the miscreants took away some articles from the house. On hearing a
hue and cry, some villagers reached the spot. The occurrence and the assault was
due to a land dispute between the parties. In the incident, because of the
assault made, Sitaram Mandal died.

5. The
prosecution examined PW-1 Madan Mandal who is not an eye-witness. He reached
the place of incident after the incident was over. He stated that when he
reached the place of incident PW-9 Ramanand Mandal informed him that the
accused appellants were the persons involved in the assault made on the
deceased Sitaram Mandal and him. He admitted that all this happened because of
a land dispute between the family of Ramanand and family of accused Dip Narain Mandal.
His statement was recorded by the police after two days of the incident. PW-2 Jiten
Rabidas also reached the spot after the occurrence. He stated that when he
enquired from PW-9 Ramanand Mandal, his brother and female members about the
incident, they told that they did not identify any person. They told him that
after committing dacoity dacoits fled away.

PW-3 Adhiklal
Mandal also reached the spot after the incident happened. He admitted that
there was enmity between the two families since before the occurrence as they
were litigating. PW-4 Tej Narayan Mandal reached the place of incident
afterwards. He stated that he was informed of the names of the accused
appellants. He is a relation of the complainant party. PW-5 Mahesh Mandal is
one of the sons of the deceased. He deposed that he saw the incident in the
flash of a torch-light. Besides the torch light, a lantern was also burning in
the verandah. He identified the accused appellants and stated that Subhit Mandal
(A-3) was armed with a double barrel gun and Dip Narain Mandal (A-2) with a
country-made pistol. A-3 shot with a double barrel gun at his father Sitaram Mandal.
A-2 also fired with the pistol at his father. Pratap Mandal (A-4) hit him on
the head with a knife. He saw the miscreants injuring Ramanand Mandal (PW-9).
Thereafter, after collecting ornaments and clothes, they fled away. As per this
witness, the deceased Sitaram Mandal had received firearm injury and he
received injury by a knife. His statement was recorded after four days of the
incident and he admitted that before giving statement to the police he took
advice from the family members about the occurrence and then made a statement
to the police. The witness stated that Subhit Mandal (A-3) put the gun on the
chest of his father and fired at him and Dip Narain Mandal (A-2) put the pistol
near the mouth of his father and fired with the pistol.

The
witness admitted that there was a litigation between the families. The witness
also stated that he did not give the torch to the S.I. of Police nor did he
produce that torch in the court. PW-6 Brahmadeo Mandal, another son of the
deceased, identified the accused appellants to be the miscreants. He stated
that Subhit Mandal (A-3) was armed with a double barrel gun; A-1, A-2 and A-5
were armed with pistols and A-4 was armed with a knife and a lathi. A-5 poured
kerosene oil on his body and asked for a match- box. It was stated by this witness
that the properties, ornaments, clothes, etc. were looted and taken away by the
miscreants. He saw that his uncle Ramanand had sustained injury. This witness
admitted in cross-examination that he did not see who assaulted his father Sitaram
Mandal. The witness admitted that there was a land dispute between the accused
persons and the complainant party. PW-7 Bimla Devi is wife of PW-9 Ramanand Mandal.
She identified the accused persons in the light of a lantern. She admitted that
the accused persons whom she had identified had covered their faces with gamochha
but they had not tied turbans. PW-9 Ramanand Mandal identified all the accused
persons and stated that A-3 was armed with a gun, and A-1, A-2 and A-5 were
armed with country-made pistols. A-2 shot at the deceased. A-3 ordered A-1 to
assault him and A-1 shot at him which missed.

6.
CW-2 Shreedhar Choubey is the Investigating Officer who recorded the statements
of the witnesses examined by the prosecution. He stated that none of the
witnesses produced any blood-stained clothes before him. PW-5 Mahesh Mandal,
son of the deceased, had not given any list of articles stolen from his house:
Neither PW-6 Brahmadeo Mandal told him that A-1 took away ornaments and
clothes. The pouring of kerosene oil on Brahmadeo was not told to him by PW-7 Bimla
Devi nor did she tell him about the assault made on her. PW-7 did not inform
him that she identified the accused persons in the light of a lantern. During
the investigation, he did not find any empty cartridges, burnt cotton, burnt
papers, wads or pellets inside the house or in the outer verandah.

7.
CW-1 Dr. Ambroj Kumar Choudhury stated that on 16th July, 1979 he conduced post-mortem examination on the body of Sitaram Mandal
and found the following ante-mortem injuries :

(i) Abraison
2 =" x 1 =" on just below the left eye.

(ii)
One stitched wound on frontal bone. On cutting the stitches the dimension of
the wound was found to be =" x =" x bone deep. The margins were
lacerated. On dissection underlying tissues were infiltrated with blood and
blot clots. On further dissection fracture of frontal bone was detected.

(iii)
One stitched wound just below the left ear.

On
cutting the stitches the dimension of the wound was found to be 1 =" x
=" x bone deep. The margins were lacerated and the laceration of external
pine of left ear.

(iv)
One stitched wound on the left side chin.

On
cutting the stitches the dimension of the wound was found to be 1" x
=" x deep to the mouth cavity. On further dissection the laceration of muscle
and fracture of the left ramus of mandible was detected.

(v)
One stitched wound on the right side of the chest in between 10th and 12th
ribs. On cutting the stitches the dimension of the wound was found to be
=" x <" x deep upto abdominal cavity. The wound was incised and
penetrating, the weapon after passing through the skin, intercostal muscle
adjoining nerve vessel entered into the right lobe of the liver via right side
of the diaphyram, right side of the peritoneal cavity was filled with blood and
the blood clots.

According
to the doctor, injuries Nos. (i) and (iii) were simple and injuries Nos. (ii),
(iv) and (v) were grievous in nature. As per the doctor's evidence, injuries
Nos. (i) to (iv) were caused by hard blunt weapon and injury No. (v) was caused
by sharp penetrating weapon. As per the doctor's evidence, the death occurred
due to shock and haemorrage on account of the said injuries. In the
cross-examination, the doctor admitted that he did not find any indication of
any firearm injury on the person of the deceased.

8.
From the evidence of the witnesses examined by the prosecution, it is clear
that there was animosity between the side of the complainant and the accused
persons. There was a litigation between the parties and they did not have good
relations. The witnesses Mahesh Mandal (PW-5), Brahmadeo Mandal (PW- 6), Bimla Devi
(PW-7) (wife of the informant) and the informant Ramanand Mandal(PW-9), are
closely related to the deceased. At the same time, their presence in the house
where the incident took place at 11.00 o'clock at night cannot be doubted. Other witnesses who were
examined by the prosecution had reached the spot after the incident had already
taken place and they were not the eye-witnesses to the incident. Now it is well
settled by series of decisions of this Court that while appreciating the
evidence of the witnesses related to the deceased, having strained relations
with the accused party, their evidence cannot be discarded solely on that
basis, but the court is required to carefully scrutinize it and find out if
there is scope for taking view whereby the court can reach to the conclusion
that it is a case of false implication. The credibility of a witness cannot be
judged merely on the basis of his close relation with the deceased and as such
cannot be a ground to discard his testimony, if it otherwise inspires
confidence and, particularly so, when it is corroborated by the evidence of
independent and injured witnesses. Speaking for a 5-Judge Bench in a celebrated
judgment, viz., Masalti and Ors. v. The State of Uttar Pradesh, AIR 1965 SC 202
(in para 14), P.B. Gajendragadkar, C.J. said:

"
There is no doubt that when a criminal Court has to appreciate evidence given
by witnesses who are partisan or interested, it has to be very careful in
weighing such evidence.

Whether
or not there are discrepancies in the evidence; whether or not evidence strikes
the Court as genuine; whether or not the story disclosed by the evidence is
probable, are all matters which must be taken into account. But it would, we
think, be unreasonable to contend that evidence given by witnesses should be
discarded only on the ground that it is evidence of partisan or interested
witnesses. Often enough, where factions prevail in villages and murders are committed
as a result of enmity between such factions, criminal Courts have to deal with
evidence of a partisan type. The mechanical rejection of such evidence on the
sole ground that it is a partisan would invariably lead to failure of justice.
No hard and fast rule can be laid down as to how much evidence should be
appreciated. Judicial approach has to be cautious in dealing with such
evidence; but the plea that such evidence should be rejected because it is partisan
cannot be accepted as correct."

"
The test, in such circumstances, as correctly adopted by the trial court, is
that if the witnesses are interested, the same must be scrutinized with due
care and caution in the light of the medical evidence and other surrounding
circumstances. Animosity is double- edged sword and it can cut both sides. It
can be a ground for false implication. It can also be a ground for assault. "

In Ramanand
Yadav v. Prabhunath Jha and Ors., (2003) 12 SCC 606 (in para 15), this Court held
:- " But at the same time if the relatives or interested witnesses are
examined, the court has a duty to analyse the evidence with deeper scrutiny and
then come to a conclusion as to whether it has a ring of truth or there is
reason for holding that the evidence is biased.

Whenever
a plea is taken that the witness is partisan or had any hostility towards the
accused, foundation for the same has to be laid. ".

In
State of Himachal
Pradesh v. Mast Ram, AIR
2004 SC 5056 (in para 11), this Court said :- " The law on the point is
well settled that the testimony of the relative witnesses cannot be disbelieved
on the ground of relationship. The only main requirement is to examine their
testimony with caution. . Their testimony was thrown out at the threshold on
the ground of animosity and relationship. This is not the requirement of Law. ".

9. In
the present case, we find from the evidence of the witnesses examined by the
prosecution as already noticed that the witnesses are related and their
relations were strained with the appellants on account of the litigation. The
incident happened at 11.00
o'clock in the night.
The witnesses have stated that they have seen the incident and recognised the
appellants either in the torch-light or in the lantern-light which was burning
at their house. It has come in evidence of the witnesses as well as the
Investigating Officer that neither the torch or the lantern was seized by the
I.O. during the course of investigation nor was it produced before the court.

In the
circumstances, it is difficult to believe that the appellants have been
identified in the torch-light or in the lantern-light. One of the witnesses Jiten
Rabidas (PW-2), who is related to the deceased and reached the place of
occurrence immediately after the incident of dacoity, said that when he made
enquiries from Ramanand Mandal (PW-9), who lodged the FIR, his brother, and
other female members, they specifically told him that they did not identify the
persons who had committed the dacoity in the house. Family members told that
after committing dacoity, they fled away. PW-7 Bimla Devi, wife of Ramanand Mandal,
has stated that the persons who had committed dacoity at their residence had
tied gamochha on their faces. All the eye-witnesses have categorically stated
that guns and country-made pistols were used by the accused- appellants in
commission of the crime. Shreedhar Choubey (CW-2), who was Investigating
Officer, has deposed that he did not find any empty cartridge, burnt cotton,
burnt paper, pellets inside the house or in the outer verandah and so long he
was investigating the case, no bullets or pallets were received at the police
station from the hospital. Therefore, it is clear that he has not seized any pallets,
cartridges or bullets from the place of incident. There is no evidence on
record that either the gun or the country- made pistols were recovered from the
accused- appellants by the I.O. The statement of Dr. A.K. Choudhury (CW-1)
indicates that the doctor did not find any pellet or cartridge from the body of
the deceased in post-mortem. That apart, it is the case of the prosecution that
Ramanand Mandal (PW-9) received injury on the head. He was examined by the
doctor but no medical evidence was produced by the prosecution to prove the
injury on the person of PW-9.

10. On
the face of the evidence led by the prosecution, the medical evidence of the
injuries sustained by the deceased in this case assumes significant importance.
All the eye-witnesses have categorically stated that the deceased was injured
by the use of firearm, whereas the medical evidence given by Dr. A.K. Choudhury
(CW-1) specifically indicates that no firearm injuries were found on the person
of the deceased. The doctor has stated: "I did not find any indication of
any firearm injury on the person of the deceased. No pellets, bullets or any
cartridge were found by me in any of the wounds found by me."

11. It
is now well settled by series of decisions of this Court that while appreciating
variance between medical evidence and ocular evidence, oral evidence of
eye-witness has to get primacy as medical evidence is basically opinionative.
[See Mange v. State of Haryana (1979) 4 SCC 349 (conviction based
on sole testimony of eye-witness);

State
of U.P. v. Krishna Gopal and Anr., (1988) 4
SCC 302 (in para 24); and Ramanand Yadav v. Prabhu Nath Jha and Ors.,(2003) 12
SCC 606 (in para 17)]. But when the court finds inconsistency in the evidence
given by the eye-witnesses which is totally inconsistent to that given by the
medical experts, then evidence is appreciated in different perspective by the
courts. In Mohinder Singh v. The State, (1950) SCR 821 (at page 828), this
Court said :- " In a case where death is due to injuries or wounds caused by
a lethal weapon, it has always been considered to be the duty of the
prosecution to prove by expert evidence that it was likely or at least possible
for the injuries to have been caused with the weapon with which and in the
manner in which they are alleged to have been caused. It is elementary that
where the prosecution has a definite or positive case, it must prove the whole
of that case. In the present case, it is doubtful whether the injuries which
are attributed to the appellant were caused by a gun or by a rifle. Indeed, it
seems more likely that they were caused by a rifle than by a gun, and yet the
case for the prosecution is that the appellant was armed with a gun and, in his
examination, it was definitely put to him that he was armed with the gun P.16.
It is only by the evidence of a duly qualified expert that it could have been
ascertained whether the injuries attributed to the appellant were caused by a
gun or by a rifle and such evidence alone could settle the controversy as to
whether they could possibly have been caused by a firearm being used at such a
close range as is suggested in the evidence. ."

"
It is well settled by long series of decisions of this Court that where the
direct evidence is not supported by the expert evidence then the evidence is
wanting in the most material part of the prosecution case and, therefore, it
would be difficult to convict the accused on the basis of such evidence. If the
evidence of the prosecution witnesses is totally inconsistent with the medical
evidence this is a most fundamental defect in the prosecution case and unless
this inconsistency is reasonably explained it is sufficient not only to
discredit the evidence but the entire case. ".

In
another case of Thaman Kumar v. State of Union Territory of Chandigarh, AIR
2003 SC 3975 (in para 16), this Court held:

"The
conflict between oral testimony and medical evidence can be of varied
dimensions and shapes.

There may
be a case where there is total absence of injuries which are normally caused by
a particular weapon. There is another category where though the injuries found
on the victim are of the type which are possible by the weapon of assault, but
the size and dimension of the injuries do not exactly tally with the size and
dimension of the weapon. The third category can be where the injuries found on
the victim are such which are normally caused by the weapon of assault but they
are not found on that portion of the body where they are deposed to have been
caused by the eye-witnesses. The same kind of inference cannot be drawn in the
three categories of apparent conflict in oral and medical evidence enumerated
above. In the first category it may legitimately be inferred that the oral
evidence regarding assault having been made from a particular weapon is not
truthful. However, in the second and third category no such inference can
straightaway be drawn. The manner and method of assault, the position of the
victim, the resistance offered by him, the opportunity available to the
witnesses to see the occurrence like their distance, presence of light and many
other similar factors will have to be taken into consideration in judging the
reliability of ocular testimony."

12. In
the present case, the medical evidence is to the effect that there were no
firearm injuries on the body of the deceased, whereas the eye-witnesses'
version is that the accused-appellants were carrying firearms and the injuries
were caused by the firearms.

In
such a situation and circumstance, the medical evidence will assume importance
while appreciating the evidence led by the prosecution, by the court and will
have priority over the ocular version and can be used to repel the testimony of
the eye-witnesses as it goes to the root of the matter having an effect to
repel conclusively the eye-witnesses' version to be true.

The
medical evidence when specifically rules out the injury claimed to have been
inflicted as per the eye- witnesses' version, then the court can draw adverse
inference to the effect that the prosecution version as being put forth before
the court, is not trustworthy. In the present case, the medical evidence
completely rules out the prosecution version of the injuries being caused by
firearms, coupled with the fact that no evidence has been produced by the
prosecution of any pellet or bullet being recovered from the place of incident
or from the body of the deceased in post-mortem. In the light of the fact that
there was a previous enmity between the parties and the eye-witnesses examined
are related to the deceased and are interested witnesses; and that in absence
of the lantern or the torch, in the light of which the incident was said to
have been witnessed, the prosecution case as placed before the court is full of
doubts, and as such the accused-appellants are entitled for benefit of doubt.

13.
For the aforesaid reasons, the appeals are allowed. The judgment of the High
Court and that of the trial court are set aside. The accused-appellants are
directed to be set at liberty if they are not required in any other case.